Sunday, February 22, 2015

No right to breach your District of Columbia contracts.

On February 12, 2015, the District of Columbia Court of Appeals confirmed that your contract does not have an implied "right to breach."

In Sundberg v. TTR Realty, a home buyer claimed that the seller and the real estate agent failed to share information about a neighboring construction project. Had they known about the project, right across the street, they would have broken their agreement and been subject to claims for damages by the seller.

The failure to share information came AFTER the contract of sale was signed by the buyer.  They thus could not argue that a misrepresentation had been made to induce making the contract.  And that was their downfall in this case.

Precisely because the contract had already been signed, the home buyers could not claim to have relied to their detriment on the absence of this information.

And more importantly, in a District of Columbia transaction, there is no "right to breach" your contract.  You either perform, or you don't. And if you fail to perform, you remain subject to whatever legal remedies are available to the other side.

Our court breathes life into Maryland tax liens.

On February 3, 2015, the Maryland Court of Special Appeals confirmed that tax liens do not die after 12 years.  You might die, but the tax lien on your land will survive you.

In State of Maryland  v. Shipe, a citizen argued that tax liens are good only for twelve years, and must be renewed like any other judgment lien if they are to extend beyond twelve years. The Comptroller argued that liens held by the State of Maryland might be enforced like ordinary judgment liens, but they are exempted from the renewal requirement. The court summarized its decision this way:
The State maintains that a recorded tax lien has the full force and effect of a judgment lien, and therefore, like other judgments held in favor of the State, it does not expire. Appellee disagrees, stating that a tax lien is not perpetual and that the General Assembly’s clear intent was to impose a temporal duration of no more than twelve years for a tax lien judgment subject to renewal. We agree with the State. 
So, there you have it-- a tax lien does not die.It will remain as an encumbrance on your land for longer than twelve years. The State of Maryland need not renew the lien like an ordinary judgment creditor.

There remain other means to attack a tax lien, but the appellate court has now eliminated the easiest.

Easments created by record plat.

Messy and poorly documented land transactions will land you in court. In the February 2, 2015 Peters v. Emerald Hills case, the Maryland Court of Special Appeals prefaced its analysis by observing '[w]e are not holding up what occurred in this case as a model for real estate conveyancing."

Music to a real estate litigation attorney's ears!

In this case, the homeowner's association sought to prevent access by a homeowner over a triangular lot owned by the association. The lot owners argued that their rights to get in and out of their lot came from an easement created in a plat created by the developer.

A plat is not a deed.  It is a drawing filed with the County, and it shows how a development will be laid out. The drawing can show roads, set-backs, wells, woods, driveways, sidewalks and roadways. But a drawing of a driveway does not mean there is a right to maintain that driveway unless there exists an easement.

In this case, the appellate court confirmed that an express access easement can be created on a plat so that it will bind all future owners of the land over which the easement is created.  And in this case, that included the land owned by the homeowner's association. The homeowner's association was thus not permitted to bar the lot owner's access over homeowner association's land.

The basic analysis is simple-- the creation of the easement on the plat must satisfy the Maryland Statute of Frauds, and it must satisfy certain technical requirements of Maryland's recording statutes.  If the plat meets these various criteria, it does not matter that that the easement is not recorded in the land records.


What a mess, indeed.  Easements are created normally through express statements in deeds, and in recorded documents with the word "easement" in the title. You and your transaction attorney must now carefully study the record plats to discern what may, or may not, constitute additional easements that will bind you or your neighbors.  Figure this out before paying good money for land and getting a future lawsuit as a bonus prize!

Tuesday, February 10, 2015

Tell him where to stick that subpoena!

The power of the subpoena is an enormous part of a lawyer's ability to pull together facts, document and witnesses. The subpoena is equally available to unrepresented parties, but in the hands of a lawyer steeped in knowledge of the rules and national compacts for compelling testimony across state lines the subpoena is a formidable weapon.

As Wilford Brimley's character from "Absence of Malice," an assistant united states attorney, said:
Tell you what we're gonna do. We're gonna sit right here and talk about. Now if you get tired of talking here, Mr. Marshal Elving Patrick there will hand you one of them there subpoenas he's got stuck down in his pocket and we'll go downstairs and talk in front of the grand jury...

On February 2, 2015 Maryland's highest court disbarred a lawyer who was found to have repeatedly abused his position as an officer of the court by improperly serving subpoenas and deposition notices across state lines, among other things, and filing frivolous motions in courts accusing his targets of not complying with those subpoenas.

In summary, the Court found that over a period of several years, in dozens of separate cases, this lawyer had ignored well known rules about issuing subpoenas to witnesses.  The Court also found that he often filed motions in court to compel actions by witnesses, and for sanctions upon their failures to act, that were not factually true.

He was a steamroller and a bully. He took shortcuts, and he absolutely did not respect the rights of the witnesses.

As a witness in my case, for trial or deposition, you deserve my respect. Because without you, the witness, I cannot do my job.  Without the witness to testify about "who, what, when, where and how," I have little or nothing to present to the court or the jury.

You, the witness, are the foundation of our adversarial system. An English commentator describes the role of the witness this way:

Witness is an important constituent of the administration of justice. By giving evidence linking to the charge of the offence the witness performs a sacred duty of assisting the court to discover the truth. This is the reason why before giving evidence he/she either takes an oath in the name of God or makes a solemn affirmation that he/she will speak the truth, the whole truth and nothing but the truth. The witness has no risk in the decision of the criminal court as he is neither the accused nor the victim. The witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He sacrifices his time and takes the trouble to travel all the way to the court to give evidence. The witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He sacrifices his time and takes the trouble to travel all the way to the court to give evidence. The witness should therefore be treated with great respect and consideration as a guest of honour. Unfortunately, all these are seen not to be happening in the courts.

There are local rules that dictate how witnesses must be noticed and scheduled when they live in Maryland.  For example, a witness living in Garrett County cannot be compelled to travel to Kent County on the Eastern Shore to give testimony- it's just not fair to the witness, for many reasons. It is a very common question asked of our lawyers, and we are always surprised that so many other lawyers just get it wrong.  And when they do get it wrong, it is the witness-the very person providing the evidence essential to our job- who suffers the inconvenience and cost.

And if the witness is requested to bring documents to deposition, he or she must be given at least thirty (30) days to respond. Again, its only fair to treat witnesses as well as a party to the case.

But, “the subpoena powers of the State of Maryland stop at the state line.” A Maryland lawyer cannot expect to mail a subpoena from Maryland to a witness in another state and expect obedience to that subpoena.  But it happens often.

There is an Interstate Deposition and Discovery Act adopted in most States. Maryland has adopted its version of the Act, which describes how the subpoena of one state can be enforced in another state. It requires work, but when lawyers are reaching out to non-parties to draft them into the case, shouldn't it require a bit of work to assure it's done properly and with as little inconvenience to the witness as possible?

That's a rhetorical question-- please don't answer--the only proper response is "yes."

Did you receive a summons or subpoena? You have rights. Mostly you have the right to be treated fairly. And you can file a motion in court to make sure the lawyer who issued you that summons or subpoena will treat you fairly.

We, the people, need you, the witness.